IN THE SUPREME COURT OF FLORIDA

ROBERT RODRIGUEZ-CAYRO,

Petitioner, v. Case No. SC02-2528 2DCA No. 2D02-625

STATE OF FLORIDA,

Respondent.

DISCRETIONARY APPEAL FROM THE SECOND DISTRICT COURT OF APPEAL, STATE OF FLORIDA

AMENDED JURISDICTIONAL BRIEF OF RESPONDENT

RICHARD E. DORAN ATTORNEY GENERAL

ROBERT J. KRAUSS Sr. Assistant Attorney General Chief of Criminal Law, Tampa

SONYA ROEBUCK HORBELT Assistant Attorney General Florida Bar No. 0937363 2002 North Lois Avenue, Suite 700 Tampa, Florida 33607-2367 (813)801-0600 Fax (813)873-4771

COUNSEL FOR RESPONDENT TABLE OF CONTENTS

TABLE OF CONTENTS ...... i

TABLE OF CITATIONS ...... ii

STATEMENT OF THE CASE AND FACTS ...... 1

SUMMARY OF ARGUMENT ...... 4

ARGUMENT ...... 5

ISSUE WHETHER THERE IS EXPRESS AND DIRECT CONFLICT BETWEEN THE DECISION BELOW AND ANOTHER DISTRICT COURT OF APPEAL ...... 5

CONCLUSION ...... 9

CERTIFICATE OF SERVICE ...... 10

CERTIFICATE OF FONT COMPLIANCE...... 10

APPENDIX ...... 11

i TABLE OF AUTHORITIES

CASES

Ackers v. State, 614 So. 2d 494 (Fla. 1993) ...... 7

Butler v. State, 715 So. 2d 339 (Fla. 4th DCA 1998) ...... 6,8

Department of Revenue v. Johnson, 442 So. 2d 950 (Fla. 1983) ...... 7

Dept. of Health and Rehabilitative Services v. Nat'l Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986) ...... 6

Goins v. State, 672 So. 2d 30 (Fla. 1996) ...... 7

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) ...... 6

Lewis v. State, 765 So. 2d 163 (Fla. 2d DCA 2000) ...... 2

Reaves v. State, 485 So. 2d 829 (Fla. 1986) ...... 6

State v. Diaz, 814 So. 2d 466 (Fla. 3d DCA 2002) ...... 6,7

Toussie v. United States, 397 U.S. 112, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970) ... 2

STATUTES

Section 775.15, Florida Statutes (2000) ...... 1

Section 784.048, Florida Statutes (2000) ...... 2

OTHER

Article V, § 3(b)(3), Florida Constitution ...... 5

Florida Rule of Appellate Procedure 9.030 ...... 5

ii STATEMENT OF THE CASE AND FACTS

Petitioner sought a of prohibition in the circuit court to enjoin stalking charges which were pending against him in county court. The circuit court denied his petition for writ of prohibition and petitioner then filed a petition for writ of in the district court of appeal, second district, seeking to quash the circuit court’s order denying his petition for writ of prohibition. The Second

District Court of Appeal denied the petition for writ of certiorari in an opinion dated October 23, 2002 (Appendix A) which states:

Robert Rodriguez-Cayro seeks a writ of certiorari from this court to quash the order of the circuit court denying his petition for writ of prohibition. Mr. Rodriguez-Cayro filed the petition for writ of prohibition in the circuit court to enjoin misdemeanor stalking charges that were pending against him in county court. He maintains that at least a portion of the criminal proceeding is barred by the statute of limitations. We deny the petition for writ of certiorari. We conclude the circuit court applied the correct law to determine that stalking is a continuing course of conduct crime for which the statute of limitations did not begin to run until the alleged course of conduct ended.

Mr. Rodriguez-Cayro was charged on September 27, 2000, with misdemeanor stalking pursuant to section 784.048(2), Florida Statutes (2000), for events occurring between December 1, 1995, and September 26, 2000. He moved to dismiss the charges, arguing that pursuant to the two-year statute of limitations for

1 first-degree set forth in section 775.15(2)(c), Florida Statutes (2000), he could not be charged with any of the incidents alleged to have occurred before September 27, 1998. The county court disagreed and denied the motion. Mr. Rodriguez-Cayro sought a writ of prohibition from the circuit court, seeking to prevent continued prosecution for any events prior to September 27, 1998. See, e.g., Lewis v. State, 765 So.2d 163 (Fla. 2d DCA 2000) (granting writ of prohibition to prohibit prosecution for crimes barred by statute of limitations). The circuit court denied the writ. The circuit court concluded that stalking was a continuing course of conduct crime for which the statute of limitations begins to run only when the course of conduct stops. We agree. Section 775.15(4), Florida Statutes (2000), provides in relevant part that "[a]n offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated." Section 784.048, Florida Statutes (2000), the statute prohibiting stalking, evinces a legislative purpose to prohibit a continuing course of conduct. Section 784.048(2) states that "[a]ny person who willfully, maliciously, and repeatedly follows or harasses another person commits the offense of stalking." Moreover, the definition of "harass" in section 784.048(1)(a) states: "To engage in the course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose." Section 784.048(1)(b) defines "course of conduct" as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." Because the legislature has clearly defined stalking as a "continuing course of conduct" crime, see Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156

2 (1970), the statute began to run when Rodriguez-Cayro stopped the conduct. The information alleged that this occurred in 2000. The circuit court properly denied the writ of prohibition.

Mr. Rodriguez-Cayro also argues that the specific incidents alleged in the bill of particulars provided by the State are isolated and do not establish a true continuing course of conduct. Essentially, he is arguing that the earliest events are sufficiently separated from the later events by time or character so that the earliest events should not be included within the course of conduct. This argument does not address the application of the statute of limitations and provided no basis for the circuit court to issue a writ of prohibition. Certainly, Mr. Rodriguez-Cayro is free to argue this issue as a matter of relevance and admissibility at trial, but he cannot use this argument to establish a lack of in the county court. Petition for writ of certiorari denied.

(Footnotes omitted).

Petitioner now seeks this Court’s discretionary review of the District Court opinion on the ground that it conflicts with the decisions of “another district court, constitution of the state of Florida and the United States constitution.”

3 SUMMARY OF THE ARGUMENT

The opinion of the Second District Court of Appeal does not expressly and directly conflict with the decisions of another district court, and does not provide this Court with discretionary jurisdiction.

4 ARGUMENT

ISSUE: WHETHER THERE IS EXPRESS AND DIRECT CONFLICT BETWEEN THE DECISION BELOW AND THE DECISIONS OF ANOTHER DISTRICT COURT.

The opinion of the Second District Court of Appeal issued in this case does not expressly and directly conflict with the decisions of another district court. The district court opinion held that stalking is a continuing course of conduct crime for which the statute of limitations does not begin to run until the alleged course of conduct ends. None of the cases upon which petitioner relies holds differently. Thus, there is no conflict and this Court should dismiss this case for lack of jurisdiction.

Petitioner contends that this Court has jurisdiction based on conflict with “another district court, constitution of the state of Florida and the United States constitution.” (Initial

Brief at p. 7). Florida Rule of Appellate Procedure 9.030 and

Article V of the Florida Constitution set forth this Court’s jurisdiction. Neither the rule nor the constitution provide for jurisdiction based on conflict with the state or federal constitution.

Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), and

Article V, § 3(b)(3) of the Florida Constitution, provide for jurisdiction based on conflict between court decisions. The

5 constitution provides:

The supreme court ... [m]ay review any decision of a district court of appeal ... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.

Thus, this Court does have jurisdiction to review decisions of a district court of appeal which conflict with the decisions of another district court of appeal or of the Florida Supreme

Court. However, in the instant case, there is no conflict between the decision below and the decision of any other district court or the Florida Supreme Court. Appellant claims a conflict between the decision below and the decisions of another district court of appeal. However, the only district court decisions petitioner refers to in his jurisdictional brief are Butler v. State, 715 So. 2d 339 (Fla. 4th DCA 1998) and

State v. Diaz, 814 So. 2d 466 (Fla. 3d DCA 2002). No conflict exists between those decisions and the district court’s decision in this case.

For conflict jurisdiction to exist, the conflict between decisions "must be express and direct" and "must appear within the four corners of the majority decision." Reaves v. State, 485

So.2d 829, 830 (Fla. 1986). Accord Dept. of Health and

Rehabilitative Services v. Nat'l Adoption Counseling Service,

Inc., 498 So.2d 888, 889 (Fla. 1986)(rejected "inherent" or

"implied" conflict; dismissed petition). Neither the record,

6 nor a concurring opinion, nor a dissenting opinion can be used to establish jurisdiction. Reaves, supra; Jenkins v. State, 385

So.2d 1356, 1359 (Fla. 1980)("regardless of whether they are accompanied by a dissenting or concurring opinion").

In order for conflict to serve as a basis for jurisdiction, the conflict must be on the same point of law. Conflict jurisdiction can be invoked only when different results are obtained from indistinguishable facts. Department of Revenue v.

Johnson, 442 So.2d 950 (Fla. 1983). See also, Goins v. State,

672 So.2d 30 (Fla. 1996); Ackers v. State, 614 So.2d 494 (Fla.

1993).

Accordingly, the determination of conflict jurisdiction distills to whether the District Court's decision reached a result opposite a decision of this Court or of another district court on indistinguishable facts.

The decision below clearly does not conflict with either of the cases relied on by petitioner. The decision below held that stalking is a continuing course of conduct crime for which the statute of limitations does not begin to run until the alleged course of conduct ends. Neither of the cases relied on by petitioner determined whether stalking constitutes a continuing course of conduct crime. Therefore, there can be no conflict and this Court should dismiss this case based on a lack of jurisdiction.

7 State v. Diaz, supra, held that grand theft is not a continuing offense, and that each act of theft constitutes a separate crime. The opinion below does not hold to the contrary. Thus, the instant case and Diaz are factually distinguishable and the opinion below does not conflict with

Diaz.

In Butler v. State, supra, the fourth district held that the State’s evidence was insufficient to support the defendant’s stalking conviction where the evidence showed only two incidents six months apart, and the defendant and victim, who were in a marital relationship, had reconciled between the two dates. The instant case is distinguishable from Butler because there were more than two acts alleged and there was no reconciliation between the victim and the defendant between the acts.

Moreover, the Butler case addressed only the sufficiency of the evidence to support a conviction, it did not address the statute of limitations or rule on whether stalking constitutes a continuing course of conduct crime. Thus, there is no conflict between Butler and the instant case.

Because Petitioner has failed to establish the district court opinion expressly and directly conflicts with any other district court opinion, or with any opinion of this Court,

Respondent moves this Court to dismiss the instant petition for lack of jurisdiction.

8 CONCLUSION

Based upon the foregoing, the State asks this Court to dismiss the instant petition for lack of jurisdiction.

Respectfully submitted,

RICHARD E. DORAN ATTORNEY GENERAL

______ROBERT J. KRAUSS Sr. Assistant Attorney General Chief of Criminal Law, Tampa Florida Bar No. 0238538

______SONYA ROEBUCK HORBELT Assistant Attorney General Florida Bar No. 0937363 2002 N. Lois Avenue, Suite 700 Westwood Center Tampa, Florida 33607-2366 (813)801-0600 Fax (813)873-4771 COUNSEL FOR RESPONDENT

9 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to A. Renee Pobjecky,

Esq., 786 Avenue C S.W., Winter Haven, Florida 33880, this 26th day of December, 2002.

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

______COUNSEL FOR RESPONDENT

10 APPENDIX A

11